August 2023: 

The MLO Minute: “Estate Planning — No Job is Completed Until the Paperwork is Finished!” — 

By Dennis McAndrews, Esq. and Jessica Wilson, Esq.  — 

In our many years of practice, we have been required to address many deficiencies in “do it yourself” or Internet wills. Issues we frequently see include such matters as failing to identify correct beneficiaries or fiduciaries (executor/executrix, trustees, etc.), incorrect/inadequate tax clauses, failing to name a proposed guardian for minors, ignoring the effect of non-probate assets (such as life insurance, retirement plans), and a lack of contingency planning for deaths of beneficiaries and fiduciaries. Even the technical execution of these documents can prove to be problematic, such as where signatures are placed in improper locations on the document. The importance of properly executing estate planning documents was recently emphasized in an appellate court decision on August 1 which threw out a will for failure to properly execute it.

Preliminarily, we would note that virtually all our wills include a final page which allows the document to be “self-proving”, which allows the will to be probated without the witnesses personally appearing at the courthouse when the will is offered for probate. But this is an “extra” page, which does not excuse the will itself from being signed by the testator. A failure to sign the last page of the will itself caused the will to be rejected for probate in the case of Estate of Washington. In that case, after Dariel Washington died in 2021, her siblings offered a document from 2018 as her last will and testament. Dariel’s husband objected, as the document was only signed by Dariel on the page containing the self-proving affidavit. The lower court agreed, finding that the self-proving affidavit was a separate document from the will and that a signature on the self-proving affidavit could not be interpreted to be a signature on the will itself. On appeal, the siblings argued that language found within the self-proving affidavit states that the affidavit is a part of the will and that the will contains eleven pages, with the self-proving affidavit being the eleventh page. The appellate court disagreed, observing that the affidavit states that Dariel executed “the above document” as her last will and testament, meaning that the affidavit was not only meant to be a separate document from the will but that her signature was intended to be on the prior document in addition to the affidavit. The appellate court therefore upheld the lower court’s refusal to admit the document to probate as Dariel’s last will and testament.

When our staff meets with clients to finalize their estate planning documents, our last step at the meeting is to review the documents and determine that they have been signed in the correct locations. Of course, this is just one of the many ways that we work collaboratively with our clients to seek the best possible approach to their estate planning needs and to give them peace of mind that their wishes will be honored. We look forward to working with you in developing your estate planning documents! Click here to Contact Us Today!